Fired inspector says Heber Valley Railroad ignores safety problems

The whistle-blower claims bosses demoted, then dismissed him for complaints to regulators.

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This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Gene Montoya says when he alerted bosses at the Heber Valley Railroad to serious safety problems, they demoted him from rail inspector/foreman to laborer  and ignored his warnings.

When he took his concerns to state rail and work safety agencies, documents show he was fired a week after inspectors cited the railroad for violations. No reason was given for his dismissal.

Montoya is now battling the railroad over whether he was fired illegally in retribution for being a whistle-blower, and whether the popular Â but old  tourist train is safe on it trips on state-owned tracks from Heber City to Deer Creek Dam or Vivian Park in Provo Canyon.

Montoya sees that fight as akin to the movie "Jaws," when a police chief argues with a mayor about whether to close a tourist city's beaches on a lucrative holiday because of a possible man-eating shark. The beaches remain open, and shark mayhem follows.

"I feel like Chief Brody. I'm telling you there's a shark in the water, and you're telling me it's the Fourth of July. You don't let me go out there and work on the track. Instead you've got me sweeping the shop? Really?" he says he told bosses, and adds that the railroad often refused to spend money on needed repairs and tools.

But Mark Nelson, executive director of the railroad, insists Montoya was not fired because he is a whistleblower, though he says he can't discuss the real reasons because of likely litigation.

He rejects Montoya's allegations of safety problems.

"Safety," Nelson says, "is our highest priority and we have a great safety record."

Documents support some of both men's assertions Â and fuel a debate over whether Montoya was railroaded or is whistle-blowing things out of proportion.

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Concerns • Montoya says he was hired by Heber Valley about 18 months ago as a rail inspector and foreman after he worked 36 years on other railroads.

"I can read a railroad like a book. I can tell you the history of a railroad, and I can tell you they had not done any [major] work on the track for 10 years," he says. Montoya says signs included lack of proper ballast rock in the track bed, ties breaking in the middle because of that, too much elevation on some curves that led to grinding away rails as a train's weight shifted, and other problems.

He started working to correct them, he says, and fixed most. But he says the line lacked adequate equipment, including even proper shovels. He says whenhe asked supervisors to buy them he was told, "We don't have money for that."

Montoya says he then paid for the equipment himself and was never reimbursed.

Worker safety was being ignored in other ways, too, he says.

He tells of a supervisor swinging the arm of a track crane into a power line and shooting electricity through rails where workers were Â then telling them to be quiet about it. And he says a train traveling too fast crashed through barriers into an end-of-line workshop, and workers there were told by the same supervisor who drove the train that it was somehow their fault.

Nelson refuses to talk about specific allegations because of possible lawsuits. But he stresses that "we have access to or have all of the tools that we need to provide a safe inspection environment and operation environment."

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Accidents • Montoya's hand was crushed in November 2012 by heavy train wheels that he says were not properly secured and were being moved on a forklift driven by a man not certified to use it (use of forklifts by noncertified drivers would later be cited as a serious violation at the railroad by the Utah Division of Occupational Safety and Health, or OSHA).

Montoya was out of work for months with the injury  and says no one worked on track maintenance in his absence.

He says an employee assigned to inspections without proper training warned officials of a problem with the track not holding proper gauge, or width, at a certain point that could lead to a derailment, but the warnings were ignored.

A train did derail on March 26. Nelson won't comment about whether the railroad was warned of problems at the site, but says the accident was minor and caused no injuries.

"I was on that train. It was in the evening. There was never any danger. The passengers got some free candy and sodas" as they waited for another train to come and take them to the depot, Nelson says. He adds passengers "were cheering as we pulled back into the depot" about an hour and a half late. He says the derailment was reported immediately to the Federal Railroad Administration.

Some 4.6 miles of track were taken out of service for a month after the derailment, according to Heber Valley records obtained by The Tribune through an open records request.

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Demotion, firing • Montoya says when he returned to work July 8, Nelson told him, "Gene I don't know what to do with you. I'd be a fool to put you with [the supervisor he complained about] after the safety concerns you raised. Go home." He says he was brought back to work two days later, and told he would be a shop laborer and no longer was a track inspector/foreman.

He says he was put to work on top of 14-foot-high train cars cleaning them with compressed air with his bad hand. He complained ladders were not tall enough to reach the top and he ended up falling off a car.

OSHA found what it called 18 "serious" violations, but issued no fines. Records show they included: numerous violations for not protecting employees working around asbestos in cars, using highly compressed air for cleaning, employees working on roof of trains without fall protection, using forklift operators who were not certified, and a lack of safety protection on a variety of shop equipment.

"They are all issues that we are resolving," Nelson says, "and will be fully compliant." He adds some shop tools and machinery it uses on the old trains is more than 50 years old and "were built before there was an OSHA" and lack safety guards it is working to provide.

Montoya says the day after the OSHA inspection, he was sent home for a week without explanation. He says he came back for a day, was sent to pull weeds on the road with his bad hand, fainted in the heat, and was taken to a hospital. The next day he was fired without explanation, a letter of dismissal he has shows.

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Rail inspection • Because Montoya had complained to UDOT that Heber Valley lacked rail inspections, UDOT conducted an inspection on July 29.

"One of the key elements is that our inspector did find out that Mr. Montoya was relieved of his duty," says Robert Hull, engineer for traffic and safety for the agency that oversees highways and rails. So UDOT's official asked who was Heber Valley's inspector. "They informed him that they didn't have one. He [the UDOT official] informed them that was a serious oversight."

Inspection forms show that UDOT cited Heber Valley for not inspecting tracks with required frequency, and for failing to keep proper written records of inspections.

Nelson says Heber Valley has since hired a contractor to inspect the track weekly. He says before that (and after Montoya was injured), "We had employees inspecting, and then we had a couple of third parties do inspections. I believe in the 18 months that I have been in charge of the railroad there's been perhaps one week that we haven't [inspected tracks]. We've never gone longer than two weeks."

However, Montoya not only claims that few adequate track inspections were occurring, but also that any problems found were not fixed but were mitigated merely by putting a "slow order" for the train to go slower than 5 mph or 10 mph in such areas.

Heber Valley documents obtained by The Tribune show that since Montoya quit inspecting in November 2012, "slow orders" were implemented at four different points on the line. The shortest lasted three days, and the longest was for five months  but one was lifted only because the train discontinued going on that part of the track during winter.

UDOT inspects the rails every few months. Hull describes that as a "quality assurance" step mostly to ensure the railroad itself is inspecting and maintaining the tracks.

UDOT has an extra interest because the state owns the tracks, but leases them to the Heber Valley Historic Railroad Authority Â an independent agency set up by the Legislature to operate the train. It is governed by an eight-member board whose membership is set by state law, and must include such officials as the mayors of Heber and Midway.

Records show UDOT inspected the tracks, or sections of them, eight times over the past year. Five of the eight found no problems. One, as noted, complained about the lack of a Heber Valley inspector. The other two inspections noted some needed repairs to tracks. Hull says UDOT does follow-up inspections to ensure needed repairs it notes are completed.

Meanwhile, Federal Railroad Administration records show a generally good safety record for the railroad over the past 10 years. It reflects information submitted to it by the railroad and UDOT. FRA generally does not inspect tourist railroads itself to focus its resources on mainline rails, says FRA spokesman Rob Kulat.

Between 2003 and 2012, the data shows three accidents Â two in 2005 on Heber Valley's main line and one in 2009 in its yard. Five passengers were injured in the 2005 accidents. Another four passengers were reported as injured in "other incidents," all in 2007.

No fatalities occurred over the 10 years.

In that 10-year period, Heber Valley's trains traveled a total 133,273 miles, and carried 746,934 passengers. In 2012, it carried 54,261 passengers.

The railroad is currently offering its North Pole Express trains through Christmas Eve, which Nelson said are its more popular and crowded runs of the year.

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